North Dakota Council of School Administrators v. Sinner, 38 and C

Decision Date03 July 1990
Docket NumberNo. 38 and C,P,No. 890301,No. 003,38 and C,003,890301
Parties61 Ed. Law Rep. 1108 NORTH DAKOTA COUNCIL OF SCHOOL ADMINISTRATORS, Fargo Public School District, Harvey Public School Districtentral Valley Public School Districtetitioners, Appellants and Cross-Appellees, v. The Honorable George SINNER, Governor, State of North Dakota, Dick Rayl, Director, Office of Management and Budget, Respondents, Appellees and Cross-Appellants, and Dr. Wayne Sanstead, Superintendent, Public Instruction, Respondent and Appellee. Civ.
CourtNorth Dakota Supreme Court

ERICKSTAD, Chief Justice.

The North Dakota Council of School Administrators [the Council], the Fargo Public School District, Harvey Public School District No. 38, and Central Valley Public School District No. 003 [the School Districts] appeal from a district court order dismissing their application for a writ of mandamus. We affirm.

The 1987 Legislature appropriated funds based upon revenue forecasts projecting approximately $1.055 billion in general fund revenues for the 1987-1989 biennium. When a July 1988 revenue projection predicted revenues for the biennium of only $1.017 billion, Richard Rayl, the Director of the Office of Management and Budget, implemented the provisions of Section 54-44.1-12, N.D.C.C., to uniformly reduce all general fund agencies' budgets by two percent through an allotment process. As a result, the Department of Public Instruction [DPI] was required to reduce its expenditures by $7,661,458. Foundation aid grants to local school districts were consequently reduced by $6,331,711 for the biennium.

Throughout the remainder of the biennium, the revenue forecasts showed increasingly higher revenue projections. The November 1988 forecast estimated revenues at $1.022 billion; the March 1989 forecast was $1.039 billion; the April 1989 forecast, which included the effects of the sales tax rate increase passed by the 1989 Legislature, was $1.040 billion.

In June 1989 it became apparent that actual revenues for the biennium would in fact exceed the $1.055 billion projection upon which the 1987 Legislature had based its appropriations. On June 20, 1989, the North Dakota Association of School Administrators requested in writing that funds be restored to allow the full foundation aid payments authorized by the 1987 Legislature. On June 22, 1989, Wayne Sanstead, the Superintendent of Public Instruction, made a similar request. On June 29, 1989, Rayl informed all state agencies that the two percent reductions would not be restored. Actual revenues for the 1987-1989 biennium eventually totaled over $1.072 billion, some $17 million more than the projections upon which the 1987-1989 appropriations were based.

The Council commenced this action against Rayl, Sanstead, and Governor George Sinner, seeking a writ of mandamus to compel restoration of allotted funds to allow foundation aid payments in the amount appropriated by the 1987 Legislature. The School Districts were joined as petitioners a few days later, before any responsive pleading had been served. The district court entered an order dismissing the action of September 6, 1989. The Council and the School Districts have appealed, and Sinner and Rayl have cross-appealed.

The following issues are dispositive of the appeals:

1) Do the Council and School Districts have standing?

2) Is the appeal moot?

3) Did the trial court err in refusing to issue a writ of mandamus requiring the respondents to restore allotted funds to DPI for disbursement as foundation aid payments?

4) Is Section 54-44.1-12, N.D.C.C., an unconstitutional delegation of legislative authority?


A party is entitled to have a court decide the merits of a dispute only after demonstrating that he has standing to litigate the issues placed before the court. State v. Tibor, 373 N.W.2d 877, 879 (N.D.1985). Sinner and Rayl 1 assert that the Council lacks standing to seek a writ of mandamus to compel restoration of funds and that the School Districts have standing only to assert their own individual claims, not those of other similarly situated districts.

Sinner and Rayl concede that the School Districts have standing to assert their individual claims. We therefore will reach the merits as to those individual claims and, because we conclude that the petitioners were not entitled to a writ of mandamus, we find it unnecessary to resolve the disputed issues of standing.

The Council's arguments on appeal are identical to those of the individual School Districts. The petitioning parties were all represented by the same counsel, filed a single brief, and made one oral argument. No purpose would be served by determining whether the Council has standing when resolution of that issue would have no effect on the outcome of this appeal.

Similarly, it is unnecessary to determine whether the School Districts have standing to assert the claims of other similarly situated school districts. That issue relates solely to the scope of the relief which could be granted if the petitioners were entitled to a writ of mandamus. Because we conclude that the district court did not err in refusing to issue the writ, the scope of relief available if a writ were issued is immaterial. 2


Sinner and Rayl assert that this appeal is moot because they cannot now be ordered to transfer funds to meet appropriations for the 1987-1989 biennium. Specifically, they argue that the appropriation has lapsed and been cancelled as of July 30, 1989, pursuant to Section 54-44.1-11, N.D.C.C. They further assert that the funds have been transferred to the Budget Stabilization Fund, and that Section 54-27.2-03, N.D.C.C., restricts expenditure of those funds to appropriations for the current biennium.

Assuming that these assertions are correct, we nevertheless decline to dismiss the appeal as moot. We will not dismiss an appeal as moot where the matter in controversy is one of great public interest and involves the authority and power of public officials, or where the matter is capable of repetition, yet evading review. See, e.g., Rolette Education Association v. Rolette Public School District No. 29, 427 N.W.2d 812, 814 (N.D.1988); State v. Liberty National Bank and Trust Co., 427 N.W.2d 307, 308 (N.D.), cert. denied, 488 U.S. 956, 109 S.Ct. 393, 102 L.Ed.2d 382 (1988).

All of the relevant factors in this case militate against dismissal of the appeal as moot. The petitioners challenge the authority of state officials to impinge upon the appropriation power of the legislative assembly, and assert that the statute in question constitutes an unconstitutional delegation of legislative power to the executive branch. Millions of dollars in state aid to local school districts hang in the balance. These are clearly issues of great public concern involving the authority and power of public officials.

Additionally, the inherent nature of the appropriation and allotment process set forth in Chapter 54-44.1, N.D.C.C., virtually assures repetition without a meaningful opportunity for judicial review. Any time an allotment is made reducing agency budgets, the actual availability of additional revenues will not be discerned until very late in the biennium. There is a strong probability that the biennium will end, the thirty-day period specified in Section 54-44.1-11, N.D.C.C., will run, and the appropriation will lapse and be cancelled before a legal challenge in the courts can "work its way through the trial and appellate court processes." See State v. Liberty National Bank, supra, 427 N.W.2d at 309. This is a classic example of an issue which is capable of repetition, yet evading review.

We decline to dismiss the appeal as moot.


The School Districts assert that the trial court erred in refusing to issue a writ of mandamus directing Sinner, Rayl, and Sanstead to restore the allotted funds to DPI and disburse these funds to local school districts as foundation aid.

Issuance of writs of mandamus is governed by Section 32-34-01, N.D.C.C.:

"By and to whom writ of mandamus issued.--The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station...."

The party seeking a writ of mandamus bears the burden of demonstrating that he has a clear legal right to the performance of the particular act sought to be compelled by the writ. E.g., Old Broadway Corp. v. Backes, 450 N.W.2d 734, 736 (N.D.1990); Bradley v. Beach Public School District No. 3, 427 N.W.2d 352 (N.D.1988); Lund v. North Dakota State Highway Department, 403 N.W.2d 25, 26 (N.D.1987). The officer must have a nondiscretionary duty to perform the act:

" 'Mandamus will not lie ... unless the plaintiff's or relator's legal right to the performance of the particular act sought to be compelled by the writ is clear and complete.... Neither will it lie where there is some other plain, speedy and adequate remedy in the ordinary course of law.... To be enforceable by mandamus, the duty must be one clearly and peremptorily enjoined by law. The law must not only authorize the act, but it must require it to be done....' [Citations omitted.]"

Mini Mart, Inc. v. City of Minot, 347 N.W.2d 131, 136 (N.D.1984) (quoting Midland Produce Co. v. City of Minot, 70 N.D. 256, 257-258, 294 N.W. 192, 193 (1940)).

Issuance of the writ is left to the sound discretion of the trial court, and a denial of the writ will not be overturned on appeal unless ...

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